Kandasami and Another vs Adi Narayanan and Others

Raju, J.—The plaintiffs are the appellants in the above second appeal. The first appellant/first plaintiff was a minor who was represented by

the mother and natural guardian, the second plaintiff/second appellant. The plaintiffs 1 and 2 are the son and wife of the first defendant. Defendants

1 and 2 are brothers. The third defendant is the wife of the second defendant and the fourth defendant is said to be an alienee of item No. 12 in the

''A'' Schedule properties. The claim of the plaintiffs before the trial court was that most of the items of properties described in ''A'' Schedule are the

ancestral properties of the family and the rest of the properties were acquired under a registered will said to have been executed by Rengasamy

Reddiar the maternal grandfather of defendants 1 and 2 in favour of the father, mother and step mother of defendants 1 and 2 and also acquired by

purchases and mortgage, in the name of the second defendant and third defendant respectively. It is the case of the plaintiffs that all such properties

not originally belonging to the ancestral family were also thrown into the common hotchpot and they were enjoying all the A schedule properties as

joint family properties and the family was managed by the father of defendants 1 and 2 during his life time and after his death the mother and step-

mother were attending to the family and thereafter when the second defendant attained majority he came to manage the family properties as

Manager. The step mother by name Thimmammal got separated from the family by a registered partition deed dated 7.9.1972. Even, thereafter

defendants 1 and 2 continued to live together jointly. The family was always said to be in affluent circumstances and there was sufficient funds not

only to meet the expenses of the family but also to advance money to third parties and realise interest. The second defendant was also stated to

have saved large amounts with which he purchased some of the items of properties and obtained mortgages in his name representing the joint

family and also benami in the name of the third defendant with intent to benefit the joint family. All these properties were also said to have been put

in the common hotchpot, while effecting division on 7.9.1972, Ex. A-3. It was also stated that the second defendant and his wife had no separate

means or independent sources of income.

The first defendant was said to have married the second plaintiff in or about 1964 and though she was residing in the family house along with the

other members of the family, she was taken by her father during her advanced stage of pregnancy for delivery and the first plaintiff was born on

3.10.1972 during their lawful wedlock of the second plaintiff and the first defendant. The birth was also stated to have been intimated to the

defendants and though they came and saw the baby later they did not turn up to take back the plaintiffs and virtually the plaintiffs have been

deserted. It was also stated that the first defendant appears to have executed a sale deed in respect of his undivided 1/2 share in favour of the

second defendant on 4.1.1973 Ex. A-4 and the contention of the plaintiffs was that it was sham and nominal one brought out in a fraudulent

manner to defeat and defraud the rights of the plaintiff. It was also claimed that even if the said sale deed is held to be true, the second defendant

could not have obtained such sale deed making use of the funds of the joint family and therefore it was claimed that the sale deed was tainted with

illegality and injustice as also void invalid or inoperative not binding on the plaintiffs. The suit was preceded by a notice for partition and since the

claim was disputed O.S. No. 59 of 1974 came to be filed on the file of the Subordinate Judge, Madurai for claiming partition of 1/4 share of the

first plaintiff, maintenance for the second plaintiff and future mesne profits and accounting.

The defendants 1 to 3 have filed a written statement contending that though defendants 1 and 2 are brothers they were divided in status, that

though the first defendant married the second plaintiff, she was not faithful to the first defendant and was having illicit intimacy with one Ramasamy

Reddiar son of Narasinga Reddiar who is the maternal uncle''s son of Thimmammal. The father of defendants 1 and 2 by name Kandasamy

Reddiar was said to have had two wives viz. Subbammal and Thimmammal. They were sisters and defendants 1 and 2 are said to be the sons of

Kandasamy Reddiar through Subbammal. The ancestor Kandasamy Reddiar died in or about 1941 and Subbammal died in or about 1955.

Thimmammal had three daughters and the second plaintiff is said to be one of the daughters of Thimmammal. The defendants disputed the

parentage of first plaintiff also and claimed that because the illicit intimacy of the second plaintiff became known to all relations, the second plaintiff

did not return to the first defendant''s family. The second plaintiff was also accused of living in adultery. The defendants also contended that the

second defendant was not the karta or manager of the joint family consisting of himself and the first defendant and also the sons of the second

defendant. The existence of joint family was disputed and it was claimed that defendants 1 and 2 were owning the properties as co-owners only

after the partition was effected with Thimmammal under Ex. A-3. It was the further contention of the defendants that the lands purchased and got

mortgaged in favour of the second defendant and also the third defendant belonged to them absolutely since they were purchased out of their own

funds and with the financial assistance and help of the father of the third defendant and that those properties were never thrown in the hotchpot but

were kept separately and enjoyed all along by defendants 2 and 3 and consequently, they are not liable for partition. The sale by the first defendant

of his undivided 1/2 share in favour of the second defendant Was said to be for necessity and to discharge sundry debts and for the construction of

house at Tirunagar inasmuch as the ancestral lands were not yielding any sufficient income. While admitting the fact that in the sale deed executed

by the first defendant in favour of the second defendant on 4.1.1973, the first plaintiff has been shown as the son of the 1st defendant and a party

to the sale deed, an attempt was made to explain that it was done only at the instance of the second defendant to avoid any frivolous contention

and that it does not amount to the first plaintiff being considered to be the lawful son of the first defendant. Finally, it was also claimed by the

defendants that since the properties were sold away for family necessity the doctrine of pious obligation binds the first plaintiff and the sale in favour

of the second defendant by the first defendant cannot be said to be not binding upon the plaintiffs. As for the claim of maintenance made by the

second plaintiff, it was contended that she was living in adultery and she was not entitled to any maintenance and therefore the suit deserves to be

dismissed. The fourth defendant remained ex parte.

During trial, documents were marked on either side and oral evidence was also let in by both sides. The second plaintiff got examined as P.W. 2

and the first defendant as also the third defendant were examined as D.Ws. 1 and 4. After considering the oral and documentary evidence on

record, the trial court held that the first plaintiff is the son of the first defendant and consequently was entitled to 1/4 share in the suit properties

belonging to the first defendant, that the entire properties mentioned in ''A'' Schedule are available for partition, as belonging to the joint family that

the second plaintiff is entitled to maintenance at the rate of Rs. 60 p.m. and that the 1st plaintiff was entitled to get accounts and future mesne

profits from the date of the plaint till the date of actual delivery. Consequently, the suit was decreed with a charge for the maintenance awarded to

the second plaintiff. The claim made in respect of ''B'' Schedule properties was dismissed without costs.

As a matter of fact, learned Counsel for the plaintiff appears to have fairly conceded before the trial court that the claim for any share in B

Schedule properties is not pressed and that is why the trial court decreed only in respect of A Schedule properties.

Aggrieved, the defendants 1 to 3 have filed A.S. No. 97 of 1977 on the file of the District Judge, Madurai. Learned District Judge has partly

allowed the appeal by modifying the judgment and decree of the trial court. Though the judgment and decree in favour of the first plaintiff regarding

1/4 share in the ancestral A Schedule properties which are shown as Annexure 1 to the written statement alone was confirmed, with proportional

right for accounts and mesne profits the decree regarding the maintenance claim of the second plaintiff was set aside. The decree for mesne profits

granted in favour of the first plaintiffs share in the ancestral properties and for accounting from the date of plaint till date of delivery was also

confirmed but in all other respects, the suit was dismissed and the parties were directed to bear their costs throughout. The net result of the

appellate decree was that not only the second plaintiff has lost her right for maintenance but the first plaintiff also has been denied any share in the

property spot under Will executed by the maternal grandfather of the defendants 1 and 2 under Ex. B-1 dated 27.4.1923 (26 items shown as II

Annexure to the written statement), and the properties acquired in the name of the 2nd defendant shown in Annexure III as also in the name of the

third defendant shown as IV Annexure to the written statement. In substance and in effect, the claim of the first plaintiff for 1/4 share was sustained

only in the ancestral properties covering eight items of A Schedule viz. items 5, 8, 9, 17, 26, 31, 33 and 35.

Aggrieved, the plaintiffs have filed the above second appeal. This Court at the time of admitting the second appeal has formulated the following

questions of law, as arising for consideration in the above appeal.

Whether the lower appellate court was justified is negativing the claim for maintenance when there are necessary pleadings and proof for the

claim?

Whether the conduct of the defendants in doubting the parentage of the first plaintiff and the second plaintiff''s chastity in the notice and the

written statement is sufficient enough to make a claim for separate maintenance?

Whether the lower appellate court was justified in not adverting to the partition deed Ex. A-3 filed to prove that all the properties were thrown

in the common hotchpot?

Whether by reason of Ex. A-3, the defendants are estopped from disputing that there was blending?

Learned Counsel appearing on either side took me in great detail through the judgment of the trial as well as the lower appellate court and tried to

support their respective stands by inviting my attention to some of the documents and the evidence on record. Some of the relevant decisions on

the points in issue have also been placed for my consideration. I have carefully considered the submissions of learned Counsel appearing on either

side in the light of the above materials.

The suit has been laid for partition and separate possession of A Schedule properties comprising in all 46 items as belonging to the joint family.

The defendants in their written statements have classified the 46 items comprised in A Schedule into different categories, and I would consider it

necessary to advert to the same which would help in deciding the claims of the parties effectively and particularly identify clearly the respective

shares to be declared as against their claim. I am avoiding reference to item numbers and go by the categories as classified so that any possible

discrepancy in mentioning the properties by their items numbers could be safely avoided. The first category of the properties are those which

indisputably and admittedly belonged to the family as ancestral properties. It is stated that about 8 items are those ancestral properties. The next

category of properties are those got under the will Ex. B-1 dated 27.4.1923 said to have been executed by the maternal grandfather of the

defendants. This category is said to take within about 26 items. Yet another category of properties are those claimed as the self-acquired

properties of the second defendant in his name comprising of about 6 items. One more category of properties disclosed are the properties

acquired by the third defendant the wife of the second defendant comprising of two items. The last category of properties are those 4 items which

are said to belong to defendants 1 and 2 their mother Subbammal and her sister Thimmammal.

Whereas the contention of the plaintiff throughout in the courts below as well as in this Court is that the properties in the name of second and

third defendants were acquired out of the funds of the joint family from out of the income from the ancestral properties, and that the other items of

the properties have been thrown also in the family hotchpot by all the members including the family members and therefore the entire ""A"" Schedule

properties have been impressed with the character of joint family properties and consequently the first plaintiff would be entitled to 1/4 share in all

such items, the claim of the defendants through out including in this appeal is that except the 8 items of ancestral properties the other items are not

available for partition as belonging to the joint family. Learned Counsel for the defendants/respondents vehemently contended that the judgment

and decree of the lower appellate court is a well merited one arid does not call for any interference in this second appeal.

Before analysing and dealing with the claims of the appellants as to what items and which class or category of properties referred to supra can

be said to belong to joint family and available for partition with the first plaintiff in the suit it will be useful to refer to some of the settled propositions

of law and the decisions of courts in respect thereof.

In Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, , it was held that where a manager of the joint family claims that

any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in

possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund

and the onus of proof must in such a case be placed on the manager and not on his coparcencers.

In Kandaswami Chettiar and Others Vs. Gopal Chettiar and Others, , a Division Bench of this Court had an occasion to consider the position

of a female member of the family and the character of the properties acquired by such female members and the obligations cast on them or the

need for accounting the acquisitions made by them. It was held by the Division Bench after a careful review of the entire case law on the subject

that if a coparcener desires to establish that a property in the name of a female member of the family or in the name of manager himself has to be

accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a coparcener should not only barely

plead the same but also establish the existence of such a joint family fund or nucleus observed the learned Judges of the Division Bench in the said

case as hereunder:

With great respect to the learned Judge the onus is not on the acquirer to prove that the property standing in his name was purchased from joint

family funds. That may be so, in the case of manager of the joint family, but not so in the case of all coparceners. For a greater reason it is not so in

the case of female members. We are, therefore, of the view that, in the absence of any evidence in this case that there was such income yielding

apparatus in the nature of a joint family nucleus and in the absence of such joint family properties being available to the coparceners even for

purpose of enjoyment, as in this case the mother is admittedly enjoying the income therefrom, we are unable to hold that the properties described

in schedule B-1, C and G ought to be deemed and considered as joint family properties. The properties in the name of the female members and

female relatives respectively of the family such as the fifth and the seventh defendants should stand without being disturbed. This is so because the

plaintiff has failed to prove that on the date of acquiring these properties, the family had sufficient income from which the disputed accretions or

acquisitions might have been made.

In Ranganayaki Ammal and Others Vs. S.R. Srinivasan and Others, , a Division Bench of this Court has once again considered the burden of

proof involved in a suit for partition with reference to a claim that certain properties are joint family properties. The Division Bench observed in

paragraph 13 in this regard as hereunder:

The burden is very heave on the plaintiff to establish the existence of joint family nucleus. The mere lapse of time will not relieve him from

discharging his obligation. The march and passage of time cannot be taken advantage of by the challenging coparcener and this by itself would not

enable him to relieve himself of his legal duty to prove the obvious, namely, that the family was possessed of funds and there was sufficient joint

family nucleus from which the further accretions were made by the member managing the same.

Learned Judges of the Division Bench also adverted to different situations in the context of which claims may crop up for consideration of court

and the need as well as the manner of consideration of the claim regarding the joint family character of a property in a suit For partition by a

coparcener or a member of the joint family. In this connection also it has been observed by Their Lordships of the Division Bench as hereunder:

The burden no doubt is on the plaintiff to establish that there was adequate joint family nucleus out of which his father Ramasami Iyengar can

reasonably be said to have acquired all the suit properties. In a Hindu joint family, if one sues for partition on the foot that the properties claimed by

him are joint family properties, then three circumstances ordinarily arise. The first one is an admitted case where there is no dispute about the

existence of joint family properties as all. The second is a case where certain properties are admitted to be joint family properties and the other

properties in which a share is claimed are alleged to be the accretions or acquisition from the income of the available joint family properties or in

the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names

of the female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the

family and that really the properties or the amounts standing in the names of female members are properties of the joint family. It is by now well

established that properties standing in the names of the female members are their own, unless there is definite, clinching proof to the contrary by the

challenging member. It is not for the female member to prove how she acquired the same. In ordinary cases also where a plea of benami is set up it

is for the person who comes to court to establish that the properties standing in the name of the other coparceners or members are really joint

family properties which stemmed from the joint family nucleus. While considering the term nucleus it should always be remembered that such

nucleus has to be established as a matter of fact and the existence of such a nucleus cannot normally be presumed or assumed on probabilities. The

extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of

such joint family properties do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which

alone it could with reasonable certainty be said that the other joint family properties have been purchased unless a strong link and nexus are as

abolished between the available surplus income and the alleged joint family properties; the person who comes to court with such bare allegations

without any substantial proof to back it up should fail. It is in this background that this case has to be considered.

In K.V. Duraisamy and Another Vs. D. Perumalsamy and Another, , another Division Bench of this Court had occasion to deal with the onus

of proof to be discharged in the case of a claim for partition by a coparcener of an item of property as belonging to the joint family. It was held by

the Division Bench at any rate with reference to the facts presented in that case on the existence of some joint family nucleus with the aid of which

the Manager of the family was said to have started arecanut trade and derived income therefrom, that it is for the Manager of the family at the time

of acquisition of the lands to prove by clear and satisfactory evidence that the lands were acquired by him with his own separate funds and nor with

the help of joint family funds of which he was in possession and charge and that the onus of proof must in such a case be placed the manager and

not on the other coparceners.

In another Division Bench judgment of this Court reported in K. Sengodan Vs. K. Dharmalingam and Others, , once again this question of

burden of proof in a litigation among coparceners with reference to the character of property came up for consideration. Learned Judges of the

Division Bench also have adverted to the various decisions on the subject and expressed the view that the initial burden to prove that a particular

item of property belongs to the Hindu joint familylies heavily on person who makes such a claim and that the burden will shift to the other party

only if the burden is discharged. Of course this proposition appears to have been laid down in too wide a language not warranted. It was also

observed therein that the person claiming a property to be that of the joint family should also establish the availability of adequate nucleus to vend

later acquisitions, so that such later acquisitions can be impressed with the character of joint family property. On a careful analysis of the principles

laid down in all the above decisions in my view, the inevitable consequences and inescapable conclusions which flow are that no doubt to claim a

property to belong to the joint family, such person must show initially that the joint family had sufficient nucleus in the form of ancestral properties

or income therefrom, out of which the later acquisitions could be reasonably said to have been made and that therefore such acquisitions also

belong to the joint family. But the position will be different in the case of managers or father and karta of the joint family. If the later acquisition are

found or shown to have been acquired by or in the name of the father or karta and head of the family or the manager of Hindu undivided family for

the time being, it becomes inevitable only his burden to explain that the acquisitions standing in their names have been made only from out of their

separate fund and not from the joint family nucleus or funds, because of the peculiar position and status of such person and knowledge of the

affairs of the family. So far as the properties acquired by or standing in the name of female members of the family are concerned, it is not the female

member who has to prove how she acquired the same and on the other hand, it is for the person who claims such properties to belong to the joint

family to substantiate their claim on the basis of definite and clinching proof, that they have been acquired from out of the funds of the joint family

nominally for the benefit of the joint family and that such purchase was not to benefit the female concerned.

Considering the present case on hand, the oral and documentary evidence made available and adverted to by both the courts below in the light

of the above position of law, I am of the view that the judgment of the lower appellate court calls for interference in this second appeal. It has been

already pointed out that the trial court accepted the case of the first plaintiff in its entirety in respect of ""A"" Schedule properties consisting of 46

items and also decreed the claim of the second plaintiff for maintenance and a charge decree in respect thereof. So far as the lower appellate court

is concerned, the judgment and decree of the trial court insofar as it relates to the ancestral properties Belonging to the family from its inception and

the time of the father of the defendants 1 and 2 were sustained. In respect of the other items, there has been no proper or due consideration by

applying the correct and relevant principles of law. Instead though some of the relevant decisions have been adverted to by the court immediately

below, while considering those decisions in the light of the evidence and materials placed on record, before the courts below, the lower appellate

court has arrived in paragraph 15 of its judgment certain conclusions in a summary fashion without any objective consideration whatsoever. No

doubt, the properties standing in the name of D.W. 3, the female member cannot be considered to belong to the joint family for more than one

reason. In such cases there is also no presumption that those properties belong to the joint family. That apart, there was no attempt whatsoever by

the plaintiffs to demonstrate by any relevant or clinching evidence that the funds of the joint family have been diverted to acquire the properties in

the name of D.W. 3. As rightly pointed out by the learned Counsel for the respondents, even the properties got by her under Ex. B-14 settlement

deed dated 13.5.1969 have been treated by the trial court to be the joint family property. Taking into account, this aspect as also the absence of

any material worth credence to show that the joint family funds were either utilised or formed as consideration for acquiring properties by D.W. 3

in her name, the inescapable conclusion which follows is to hold only that the items of properties acquired by and standing in the name of the third

defendant are her exclusive and self-acquired properties and are not available for being divided as items belonging to the joint family.

So far as the items of properties classified as having been got under the will executed by the maternal grandfather of the defendants 1 and 2

under Ex. B-1 dated 27.4.1923 are concerned the trial court has committed an error in treating them as belonging to the joint family forgetting that

the properties derived or inherited from the female line or through maternal grand parents or collaterals cannot be impressed with the character of

joint family or ancestral properties belonging to the joint family. But at the same time, the lower appellate court also has not chosen to property

apply its mind to the several intricate aspects of the matter in totally negativing the claim of the first plaintiff. There could be no serious dispute over

the fact that in the items of properties, derived under the Will, Ex. B-1 from the maternal grandfather, the father of defendants 1 and 2 and the

grandfather of the first plaintiff by name Kandasami Reddiar had each 1/3 share. In view of the fact that the said Kandasamy Reddiar died in the

year 1941 the property developed on his sons defendants 1 and 2 and wives Subbammal and Thimmammal put together. As a consequence of

which, the father of the first plaintiff should be held to inherit 1/9 share and the said 1/9 share will be in his hands as belonging to the joint family

property, so far as the family of the first defendant and the first plaintiff are concerned, if that be the position, necessarily the first plaintiff will be

entitled to one half of the 1/9 share namely, 1/18 share in the properties acquired under the will Ex. B-1. So far as the properties acquired by the

second defendant in his name are concerned, both the trial court as also the lower appellate court went on different and extreme lines of thinking.

The trial court, in my view, has overlooked to see that except the othi property converted under Ex. B-7 dated 19.4.1973 the other items of

acquisition by the second defendant was long prior to and at any rate before the partition and division effected in the joint family consisting of the

defendants 1 and 2 their paternal uncles and or their heirs, under Ex. B-5 dated 15.11.1968. All or any of the acquisitions made by second

defendant in his name prior to 15.11.1968 could not be said to belong to the joint family consisting of either defendants 1 and 2 or the first plaintiff

and first defendant on the one hand and the second defendant on the other since such joint family as an independent legal entity can legally be said

to come into existence only on and from 15.11.1968 and there is no rhyme or reason in treating the earlier acquisitions when there was no separate

joint family as such consisting of the first and the second defendant among themselves. The acquisition prior to 15.11.1968, if only were from the

joint family funds, it should be considered to be that of the joint family funds of the paternal uncles and their heirs also and as long as in the partition

deed dated 15.11.1968, such items of properties were not dealt with as belonging to the joint family and were allowed to be retained by the

second defendant as his own. Those items will be considered to be the self-acquired properties and cannot be subject to division at the instance of

the first plaintiff as forming part of the assets of the joint family of himself, his father and the second defendant. So far as the item of property

acquired under the form of an othi under Ex. B-7 dated 19.4.1973 is concerned the same has been found to have been acquired after the partition

effected under Ex. B-5 on 15.11.1968 when the second defendant was indisputably the manager of the joint family consisting of himself and his

brother. So far as the said property is concerned, inasmuch there has been no concrete material for sufficient evidence to show that the second

defendant had acquired the same from his separate fund, the property got under Ex. B-7 though by means of an othi has to be treated as forming

part of the joint family assets and available for partition and the first plaintiff would be entitled to 1/4 share in the said item. To this extent, the

judgment of the courts below require to be and shall stand modified. So far as the other remaining items of properties which were classified as

belonging to defendants 1 and 2, their mother Subbammal and her sister Thiammammal are concerned, they were acquired under sale deeds and

settlement deeds in favour of the female members as also the defendants 1 and 2 long before the joint family of which the first plaintiff can claim to

be a member has come into existence. In respect of those properties, the first plaintiff cannot claim any share and the respective persons who are

ostensible owners would alone be entitled to the same and those properties are not available for partition in this suit as belonging to the joint family.

As for the relief relating to mesne profits and accounting is concerned, the first plaintiff is entitled to the proportionate mesne profits and the

right to get accounts from the date of plaint till delivery and the judgment and decree under appeal is confirmed insofar as the 1st plaintiff s share of

the properties are concerned as declared under this judgment and decree.

So far as the claim of maintenance by the second plaintiff is concerned, it is seen that the trial court has allowed the claim and fixed the

maintenance at Rs. 60 p.m. with a charge for the same in the 1/4 share of the first defendant. As against this, the lower appellate court has chosen

to reverse the judgment and decree and dismiss the claim of the second plaintiff merely on the ground that there was no sufficient allegations to

substantiate her right to separate residence and maintenance and that even in the notice exchanged, prior to the suit there was no such claim. At the

same time, even the lower appellate court in paragraph 16 of its judgment adverted to the fact that the allegations have been made in the reply

notice prior to the suit as also in the written statement filed in the suit and also in the evidence accusing the second plaintiff of living in adultery and

questioning the paternity and parentage of the first plaintiff itself. The mere fact that at the time of hearing of the appeal, the said plea is not pressed

before the lower appellate court is no ground to non-suit the second plaintiff of her claim for separate residence and maintenance. I have gone

through the averments in the written statement and also the notice exchanged prior to the suit and the evidence adduced during the trial of the suit.

Such abuses and allegations against the second plaintiff of adultery and unchastity were not merely made with reference to events or happenings of

those days when they were made but with reference to even the point of time when she actually left the family. Consequently such conduct on the

part of the 1st defendant gives sufficient indication, in my view that the estrangement and consequential separate living of the second plaintiff was

necessitated only on account of such allegations of unchastity made against the second plaintiff. It is by now well-settled that there is no need for

referring to any authority of the case law on the subject that such allegations made against a wife constitute sufficient cause of mental cruelty

justifying and providing the required legal basis entitling her for a separate living and claiming maintenance. In view of the above, the conclusions of

the lower appellate court in this regard to not conform to the well settled principles of law and therefore are liable to be and are hereby set aside.

Consequently, the judgment and decree of the lower appellate court insofar as it relates to the dismissal of the claim of the second plaintiff for

maintenance is set aside and the judgment and decree of the trial court is restored. The judgments and decrees of the courts below are modified to

the extent indicated above and the shares to which the respective parties will be entitled to would be as declared in this judgment and according to

which, a preliminary decree shall follow. No costs, throughout.

Before parting with the case, I cannot resist but place on record the great amount of assistance rendered by Thiru A. Shanmugavel, learned

senior member of the Bar by producing all the relevant decisions on the subject and also crisply and meticulously analysing the factual details with

reference to the individual items of properties to enable me to effectfully adjudicate on the conflicting claims made in this second appeal.